By Mercy Matonga:
The High Court sitting as a Constitutional Court in Lilongwe yesterday ruled that members of Parliament (MPs) should not take part in the management of Constituency Development Fund (CDF) finances, describing their involvement as unconstitutional.
A panel of three judges— namely Mzonde Mvula, Howard Pemba and Eddah Ngwira-Mwakibinga—led by Mvula, said the involvement of MPs in the use of CDF funds was, according to the Constituency Development Fund and Water Resource Fund guidelines established in 2022, illegal.
“The roles place the legislature in the active involvement of affairs meant for the Executive arm in the Local Government authorities. From a functional point of view, this intrusion unjustifiably strays into the nucleus, core functions, and pre-eminent domain that are the exclusive competence of the Executive branch of government. To that extent, this is inconsistent with the Constitution. It violates the doctrine of separation of powers,” the ruling reads.
The court also ruled that Constituency Development Fund and Water Resource Fund guidelines established in 2022 are unconstitutional. These give power to MPs to launch projects before commencement and facilitate project implementation.
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“In view of the foregoing, we lift the veil on the Attorney General, as agent, to hereby declare on the principals that the guidelines and the 1st defendant’s action to implement the policies issued under the said guidelines are unconstitutional.
“Consequently, we order that the guidelines should not be implemented wholesale. They should be amended to allow another stakeholder to be chosen to replace the MPs,” the ruling reads.
Additionally, the court said the presence of MPs and affording them voting rights in their role as ex-officio members of the council, under Section 5(1) of the Local Government Act, is unconstitutional as it puts them in a conflict of interest that consequently compromises their oversight role.
Commenting on the ruling, lawyer for Local Government Marshal Chilenga said he was happy with the decision, as it affirms the separation of powers.
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“What we had asked the court was that the guidelines were unconstitutional and Section 5(1) of the Local Government [Act] was unconstitutional, including the voting rights. The court says ‘Can we have the equality among these?’ The voting [right] remains with councillors,” Chilenga said.
On his part, Malawi Local Government Association Executive Director Hadrod Mkandawire said the ruling had reinforced and entrenched decentralisation and local development, which he said were premised on the principles of subsidiarity and territorial approach.
“The principle of subsidiarity entails that there be a division of powers, authority and responsibilities by actors at the national government and Local Government level. This ruling has reinforced and entrenched decentralisation and local development, which is premised on the principles of subsidiarity and territorial approach. We expect all the relevant authorities to comply with this ruling without any undue delays,” Mkandawire said.
The ruling follows a request by the Malawi Local Government Association, which asked the court to determine whether it is constitutional for MPs to manage the CDF, whether the 2022 CDF guidelines are constitutional and whether MPs should have voting rights as ex-officio members.
